This is an action in lieu of a prerogative writ, and in the instant case it would have been a writ of mandamus. Such a proceeding is of ancient origin, having been invoked since the time of Edward the Third. It was issued by the King in accordance with his pleasure, when in those days he was supposed to have sat personally as Judge of the Court of the King's Bench. It is a remedy clearly within the discretion of the Court.
"According to the theory of the common law, he (King) was the fountain of justice, and where the laws did not afford a remedy, and enable the individual to obtain his right by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and mandamus was issued in his name to enforce execution of the law." 34 Amer. Juris., "Mandamus," § 3, page 810.
The present proceeding is one which seeks a remedy at law. The plaintiff herein is a member in good standing of the
Gabriele D'Annunzio Lodge No. 22, Order Sons of Italy in America, since September 13, 1923, and he has been a member of the Mortuary Fund since September 28, 1925. He is still a member in good standing and has paid into said Fund approximately $200. The Mortuary Benefit Fund is a fund paying policy holders therein $200 upon the death of their wives, and their wives are paid $400 at the policy holders' death.
The defendant Grand Lodge of the State of New Jersey, Order Sons of Italy in America, is a voluntary fraternal organization and a part of the Supreme Lodge, Order Sons of Italy in America. The plaintiff was a Grand Delegate to the Grand Lodge Conventions from 1923 through September, 1946, and was Grand Corresponding Secretary from September, 1936, through September, 1946.
In this proceeding the plaintiff seeks a judgment that he be permitted to examine and have audited the books of record, ledgers, cash books, deposit books, bank statements, Mortuary Fund books of account, books and records of the Orphans' Home, and all other books and records of the defendant corporation.
The arguments, evidence, testimony, and exhibits took five days to present to this Court.
The defendant contends that the plaintiff has not exhausted all the remedies within the Local Lodge, Grand Lodge and Supreme Lodge. The evidence adduced would indicate to this Court that he has exhausted his remedies and complied with all the legal requisites within the defendant Association itself and he is now properly taking recourse to this Court. As to the plaintiff's right to prevail it is well settled that a writ of mandamus should not issue in doubtful circumstances, Murphy v. Jos. Hollander, Inc. , 131 N.J.L. 165, 34 A.2d 780 (Sup. Ct. 1943); Lowenthal v. Bratt , 135 N.J.L. 572, 53 A.2d 306 (Sup. Ct. 1947). The plaintiff, of course, has the burden of proving his case by the fair preponderance of the evidence, that is, by the greater weight of the evidence, before being entitled to a verdict.
Mandamus will not lie if the application is made in bad faith. The burden of so proving is on the defendant. It urges the plaintiff's characteristics or actions are evidence of bad faith and, therefore, he should not receive a verdict. Morris v. United Piece Dye Works , 137 N.J.L. 262, 59 A.2d 660 (Sup. Ct., June , 1948); Vernam v. Scott , 12 N.J. Misc. 177, 171 A. 171 (Sup. Ct. 1934); McMahon v. Dispatch Printing Co. , 101 N.J.L. 470, 129 A. 425 (Sup. Ct. 1925); Fuller v. White Metal Mfg. Co. , 13 N.J. Misc. 591, 180 A. 231 (Sup. Ct. 1935).
Of course, if a compliance with the rules and laws would be futile, then the exhaustion of such remedies would be nugatory. Frawley v. Pennsylvania R. Co. , 14 N.J. Misc. 492, 186 A. 41 (Sup. Ct. 1936); Mogelever v. Newark ...